Jafar Ali vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

The instant bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release, in case

FIR No. 31 of 2021, dated 24.03.2021, under Sections 363, 366-A, 376 and 506 IPC and Section 4 of POSCO Act, registered at Police Station Majra,

District Sirmour, H.P.

As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is neither in a position to

tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place. No fruitful purpose will be served by keeping

him behind the bars, so he be released on bail.

Police report stands filed. Succinctly, the prosecution story, as emanates from the records is that on 24.03.2021 father of the prosecutrix

(complainant) made a complaint to the police alleging therein that he alongwith his family lives migratory life and for six months in summer he resides

in a kiosk located in Haripur Forest. As per the complainant, his younger daughter, prosecutrix (name withheld), is sixteen years old and no records

qua her date of birth is available. A year back, one Jafar (petitioner herein) took the prosecutrix to Paonta and kept her in his house. The petitioner

sexually molested the prosecutrix and the matter was amicably resolved. However, the petitioner did not desist from his activities and started chasing

the prosecutrix. The petitioner committed forcibly sexual intercouse with the prosecutrix and about 20 days back he again repeated his act. Some

unknown person reported that the complainant has solemnized marriage of his minor daughter (prosecutrix) to Child Helpline. So, the complainant

alongwith his daughter was taken to Nahan, where statement of the prosecutrix was recorded and on being asked by the Child Helpline people, he

reported the matter to the police. Upon the complaint, so made by the complainant, police registered a case and the investigation commenced. Police

visited the spots of occurrences, recorded the statements of the witnesses and all codal formalities were completed. During the course of investigation,

it was unearthed that about one year back the petitioner took the prosecutrix with him and after two months he again sexually molested the

prosecutrix. It has further come in the investigation that about 15-20 days back the petitioner came to the kiosk of the prosecutrix and sexually

molested her. Upon the identification of the prosecutrix, police prepared the spot maps and effected relevant recoveries. Police medically examined

the prosecutrix, procured her date of birth record and recorded her statement. On 30.03.2021 the petitioner was arrested. As per the police, both

petitioner and the prosecutrix belong to same community. On 27.05.2021, after completion of investigation, challan stands presented in the learned

Trial Court. Report of forensic analysis is awaited from SFSL, Junga. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the

petitioner has committed a heinous crime. There is possibility that in case at this stage, if the petitioner is enlarged on bail, he may flee from justice and

may tamper with the prosecution evidence, so his bail application be dismissed.

I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the

police report, carefully.

The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the

petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place. No fruitful

purpose will be served by keeping the petitioner behind the bars for an unlimited period, as investigation is complete, nothing remains to be recovered

at the instance of the petitioner and challan stands presented in the learned Trial Court. The custody of the petitioner is not at all required by the police

for investigation, so the petitioner is required to be enlarged on bail by allowing the instant bail application. Conversely, the learned Additional

Advocate General has argued that the petitioner was found involved in a serious offence, so in case he is, at this stage, if enlarged on bail, may flee

from justice or may tamper with the prosecution evidence, so the bail application of the petitioner may be dismissed.

In rebuttal the learned Counsel for the petitioner has argued that the petitioner is neither in a position to flee from justice nor in a position to tamper

with the prosecution evidence, as he is resident of the place. His custody is not at all required by the police, as the investigation is complete, nothing

remains to be recovered at his instance, even the challan stands presented in the learned Trial Court. Moreover, the petitioner cannot be kept behind

the bars for an unlimited period, so the petitioner may be enlarged on bail by allowing the instant bail petition.

At this stage, considering the age of the petitioner, who is only 20 years old and also the age of the prosecutrix, the manner in which the offence is

alleged to have been committed by the petitioner, the fact that the petitioner is neither in a position to tamper with the prosecution evidence nor in a

position to flee from justice, as he is resident of the place, considering the facts that investigation is complete, challan stands presented in the learned

Trial Court, custody of the petitioner is not at all required by the police, nothing remains to be recovered at the instance of the petitioner, the fact that

the petitioner is behind the bars for the last more than three and half months and cannot be kept behind the bars for an unlimited period, the fact that

the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, and also considering the overall facts, which have come

on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the

petitioner on bail, is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, in case FIR No. 31

of 2021, dated 24.03.2021, under Sections 363, 366-A, 376 and 506 IPC and Section 4 of POCSO Act, registered at Police Station Majra, District

Sirmour, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.20,000/- (rupees twenty

thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/ Police/ authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade him/her from disclosing such facts to the Investigating Officer or Court.

In view of the above, the petition is disposed of.

Needless to say that the observations made hereinabove are only confined for adjudication of the present case and the same shall have no bearing

on the merits of the main case, which shall be adjudicated on its own.

Copy dasti.